Sunday, January 27, 2019

A proposed Czech law to punish Zuckerbergs for censorship

Social networks could face 3-year jail term, €2 million fines, or abolition for illegitimate filtering of discussion on essential political topics

Especially in recent months, we discussed several stories about censorship organized by Facebook, YouTube, Twitter, and other social networks against users with opinions labeled "politically incorrect". Look at the discussions about the terror against gab.com, Alex Jones, and many others.

While e.g. Angela Merkel's government of Germany seems to be openly organizing this censorship – and it even hires some former agents of Stasi, the East German counterpart of KGB, to do such things – a group of Czech lawmakers intends to clarify the legal system of Czechia in a somewhat opposite way. If someone like Facebook, Mark Zuckerberg, or individual administrators filtered posts by users that don't actually violate any laws or public morality – especially posts about publicly important topics such as migration, environment, and others – he or she would be ordered to pay a $20,000 fine (small individuals) or a $2 million fine (entrepreneurs and companies), or be jailed for 6-36 months.

The law applies to social networks open to the public with at least 100,000 users in Czechia (whose population is 10.5 million, 5.1 million out of them are Facebook users, 1.5 million are on Instagram, Twitter could possibly be beneath the threshold, I am not sure) – that's a particularly chosen threshold that defines what we considered the "[digital] public spaces".

According to a story in Echo, the draft bill is sponsored by Václav Klaus Jr (the face of the "nationalist wing" of the right-wing ODS that I voted for, the ex-president's son), Skopeček, Zahradník, Majerová and 10 other deputies of ODS, failed Prague Mayor candidate Nacher and 9 others from ANO (the billionaire prime minister Babiš's populist movement), social democrat Foldyna, Christian Democrat Juránek, Party of Mayors STAN's Pávek, Volný and 4 more from nationalist SPD, and communists Ondráček (the guy with the baton in 1989) and Pojezný.

In total, there are 34 sponsors of the law (out of 200 lawmakers in the House) from 7 Parliamentary parties (out of 9, in our unusually motley Parliament) – quite a diverse group that Echo labels a cattydog or puppycat (do you have equivalent hybrid words in English?). As the pro-EU outlet Euronews discusses in some detail, the main critics of the draft include the chairman of the politically correct TOP09 Miroslav Kalousek (who has gone through several verbal shootouts against Klaus Jr in the past), the new boss (after Petr Mach) of Libertarian Party of Free Citizens Pajonk (who seems Pirate-like and more left-wing than than Mach and I probably wouldn't vote for him anymore), former prime minister Topolánek (ODS), and a few others. If you only look at the well-known people with strong enough opinions about the bill, the backers – generally politicians who have criticized the political correctness in the past, like I did – seem to outnumber the critics. But the 2 parties (out of 9) that weren't in the list above, Pirates and TOP09, are uniformly against the proposed bill.

The critics talk about the need to defend Czechia against disinformation war (Russophobic memes are produced mainly by TOP09 but I think it's also the main motivation of Topolánek's), about the freedom of private companies (I suppose that's what the new Party of Free Citizens boss says), and about the alleged digital illiteracy of the sponsors of the bill (that's the criticism by Pirates who love to present themselves as young digital gurus and geeks but I've had increasing doubts about their digital credentials – the average Pirate is almost certainly better at drugs). Some of the criticism is pure misinformation. For example, some people say that Facebook users may be jailed for removing comments on their profiles; but the bill clearly targets administrators and operators of the whole servers only.

The Pirates say that with the bill, the social networks may be filled with old-fashioned spam that is impossible to wrestle with. This complaint should be thought of. But you know, I think this "risk" is ultimately just a demagogic one because the bill really targets censorship that is done by humans for very clear political goals. It's plausible that if social networks have some spam-fighting algorithms, they would need more rigorous procedures to find out who is a real human user because those users' posts have to be protected against censorship.

Well, I am not quite sure how the bill would deal with the situation in which the censorship would be blamed on an algorithm – that was nevertheless designed to politically distort the discussion.

Readers who speak Czech should read the draft (PDF). It has just ten pages. About 1/2 of them is a justification of the bill. One needs to protect the freedom as defined in the Charter of Civil Rights and Freedoms, an amendment of the Czech Constitution (which is a highly extended counterpart of the First Amendment of the U.S.). Authors define the law as a necessary defense against some anti-freedom evolution in Western Europe and the U.S. (very correct) and claim the draft to be compatible with the Czech and international legal constraints, to bring no new expenses, and other things. They explain that they basically want some discussions e.g. blogs to be exempted (the number of users already does so, but so does the adjective "realtime") if the discussion is pre-moderated and the restriction on plurality of opinions is therefore expected.

It also tries to clarify whether the entrepreneur or the administrator is subject of the new criminal act.

If you're a Zuckerberg of some sort, it is enough for you to be jailed when an administrator "acts on your behalf". I don't quite see what's the procedure to decide whether "a lowly administrator acts on his boss' behalf". And as I mentioned above, I don't know how the algorithm-assisted censorship would be dealt with. Let me hope that the proponents have some sane explanation or that one could be constructed.

OK, here is the proposed law.

Proposal by Klaus Jr, Majerová-Zahradníková, [6 other explicit names], and others to approve a law to amend the List of Criminal Acts and a List of Minor Offenses, with some numerical IDs of the affected bills

Delivered on January 25th, 2:49 pm

Law dated [...] by which the laws about criminal acts and offenses are amended. The Parliament has adopted the following bill on [...]:

First partA newly defined criminal act

At the appropriate places [numerical IDs of many laws], one inserts the following:

Paragraph 179a: Violation of the freedom of speech

The operator or administrator of a publicly accessible electronic social network or another platform allowing realtime sharing of the user-created content which is used by over 100,000 users in Czechia, who intervenes into the freedom of speech of another person by illegitimately removing, banning, or otherwise making inaccessible a post shared on that network [some repetitive language here], which is not in a self-evident contradiction with the laws [Czechia already has some "reasonable" old-fashioned laws against the hate speech that are being respected], with international treaties involving Czechia, or good public manners, whose intent is to disable or complicate the public discussion about important questions of the public interest, will be punished by 6 months or up to 3 years of jail term, the ban of the business, or a financial punishment.

Second partAn amendment of the law about "some offenses"

At some appropriate place of the law, the following is inserted:

Paragraph 7a: Offense of violating the freedom of expression

(1) A physical person commits an offense if he or she, as the operator or administrator of a social network enabling realtime publication of posts by more than 100,000 users, removes a post [just like above, with the same intent and with the same exceptions as above].

(2) A legal person (company) or an entrepreneur (defined by some paperwork in Czechia) commits an offense if [he or she or it does the same removal etc. as above, with the same exceptions]

(3) This offense may be punished by a fine up to
(a) CZK 500,000 (€20,000) if it's (1), i.e. a physical person, non-entrepreneur [a lowly activist-administrator, you know]
(b) CZK 50,000,000 (€2 million) if it is according to (2), the operator as a whole or its owner

Third part

The bill comes to force on 1st day of the month some 3-4 months after it is announced.

[3 pages of justifications follow, I discussed it above, 1 page with the list of sponsors, and 2 more pages with a repeated text of the new laws, as seen within the content of the amended bills]

OK, there may be some risks and counter-arguments that may be discussed

The social networks may be doing some "legitimate deletion" of spam and other things, including automatically generated content, and I suspect that it would need some exception, otherwise these companies could prefer to close their services on the Czech territory. But I am not quite sure whether such exceptions are needed. Just relatively recently, Facebook and similar content was basically uncensored and almost all the "technology" added to remove things was politically motivated and illegitimate.

Of course, a possible outcome could be that the social networks with over 100,000 users close their business. They could be replaced with a much higher number of "mini-Facebooks" with 90,000 users, of course. Maybe it would be a good thing so I wouldn't automatically say that this scenario is an argument against the draft. If there were 50 mini-Facebooks in Czechia, wouldn't they be censoring equally? This is an obvious possible problem with the bill. Even platforms with 90,000 users may be close to important "public spaces" and they may synchronize their censorship efforts so that the fragmentation becomes just a trick to circumvent the law. But yes, I think that censorship becomes harder if the monopolies are broken to pieces.

To say the least, I think that the draft is a very particular proposed solution to a problem that I consider damn real. Even if it is not approved by the Parliament, it's good as a starting point for discussions about solutions to that perceived problem. One may discuss drawbacks of the proposed bill. But I do think that most people who don't like the bill don't like it simply because they like censorship and the centralized restriction of the public discussion.

Alternatively, the bill could be approved and the courts could be enforce it in a rather tolerant way. There is a rather clear characteristic of the newly proposed criminal act – the censorship is supposed to be intentional. It might be hard to prove in the court that the censorship is intentional but this difficulty may be viewed as a virtue. The social networks wouldn't go out of business "by accident". Instead, the law could just exert pressure on the operators and administrators not to organize political censorship deliberately because that could be proven and punished by the courts.

So even if there are some risks of the law – of the type that show that the law goes too far – these risks may be irrelevant if the law is enforced sanely and moderately. I would vote for the law but I think it's legitimate to listen to arguments that this cure could be worse than the disease.